The Telegraph
Since 1st March, 1999
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- Who draws the limits to the prerogatives of the legislature'

The current standoff between the legislature and the judiciary over the prerogatives of the legislature does not bring credit to either institution. Whether both institutions are clearly overstepping their proper domain is a debatable matter. But the form in which the argument is being conducted is generating more heat than light. Part of the difficulty is that the particular issue at hand, about parliament having the right to expel eleven members of parliament in the way it did, is being used as a benchmark in the larger battle between the judiciary and the legislature. For some years now, the legislature has been on the back foot. In expelling MPs expeditiously, the legislature at last seemed to have taken some action to redeem its own credibility, and it would be somewhat ironic if the court determined that it did not have the power to do so after all.

The standoff between the speaker and the court can be considered at different levels. The first level is that of rhetoric. Assuming indeed that parliament is confident of its case and assuming further that it is right to insist on its jurisdiction, was it incumbent upon the speaker and parliament to react to the court's notice the way they did' Was it necessary to officially refuse a court notice' Were there other options that could have been exercised' For instance, the speaker could have replied, explaining parliament's position. Or a law officer of the government could have explained parliament's position in court. This has been the practice in the past. But outright refusal of a notice, combined with a call for presiding officers of legislatures to meet, was arguably a needless escalation of rhetoric, not warranted by the substance of the notice at hand.

But the escalation of this rhetoric suggests that the issue at the moment is not simply about upholding the technical validity of parliament's expulsion of its members. Parliament appears to be making an even more emphatic statement by its actions. It wants to defend a deeper theory of its jurisdictional autonomy. Ask the question: Who decides where the boundary of parliamentary prerogative lies'

The answer to this question is not as straightforward as it appears. If we say 'the courts', then it is not clear there is a parliamentary prerogative at all, for that prerogative is now mediated through judicial power. The usual way the court defends its encroachment upon legislative prerogative is this. It posits a distinction between the existence of a right and its application. On this view, the court is the final authority that decides whether parliament has a right in the first place. But the speaker's position seems to be raising a deeper point. By what authority does the court insist that it, and it alone, is the final arbiter of what parliament's rights are' In this instance, an appeal to the Constitution does not help. If both branches are co-equal, does not insisting that every legislative prerogative is subject to the court's jurisdiction in effect make the court supreme over everything, a branch of government more equal than others'

Whatever the court may say about the separation of powers, or about all branches of government being under the Constitution, the fact is that the court has made itself supreme in many ways. It is a little simplistic to insist that the Constitution is supreme. This is because what the Constitution is cannot be decided with reference to a 'text'. Somebody has to interpret the Constitution and that institution decides what the Constitution is. Indian courts have claimed absolute and exclusive authority to interpret the Constitution. In doing so, the courts have expanded their powers beyond anything that a reasonable reading of the Constitution would warrant.

The fundamental challenge the speaker is raising is to this state of affairs. The legislature has ceded power to the court in every instance. But, at least, when it comes to that sliver of issues dealing with legislative rules, parliament wants to assert its authority. The court has not given a verdict yet. But parliament seems to be saying that the very act of admitting a suit is encroaching upon its powers. Whether the court upholds the expulsion is a minor issue. By admitting the suit, the court is again insisting that no, repeat, no issue is immune from judicial scrutiny. But if this is the doctrine then what remains of the legislature's prerogative over its own matters; a prerogative that exists at the behest of the court is not a prerogative at all. And this is what the speaker wants to remind the court.

Is the speaker correct in his surmise' A fair assessment would say that he is not entirely off the mark in raising this fundamental issue. Admittedly, the Constitution and Article 105 is silent over the expulsion of members. Who should fill in this interpretive gap' Given the fact that the Constitution does seem to grant legislatures great leeway over the manner in which their proceedings are conducted, the presumption should be in favour of parliament. For instance, the Constitution says nothing about the fact that a budget should be properly discussed before it is passed. Will the Supreme Court now have the right to intervene, laying down the stipulations about what counts as proper discussion' The court's view in the Jharkhand assembly case and its admission of expulsion case suggest that there is now nothing preventing the courts from regulating legislative discussion, in the name of preserving the integrity of the democratic process. The speaker is right to register his protest, though it could have been done more reasonably.

It seems that in relation to the rules of conduct that apply to members of parliament, the legislature must be given more leeway. This would not have diminished the court's authority in any way. The court's authority is inescapable. After all, even a refusal to admit would have been a court decision. But admitting the suit seems to lay down a stronger version of the court's authority than is warranted. Indian courts have become so enamoured of their power that they rarely refuse a matter on the ground that it is not within their jurisdiction. This approach has made the doctrine of the separation of powers and the equality of all branches of government a little bit of a pie in the sky, and the speaker is beginning to express a legitimate frustration.

But there is a bigger lesson in the politics of law. There is no such thing as a transparent Constitution that can settle all disputes about the allocation of power. Power flows to the institution that exercises it, and the court has learned to create its own power. Much of this has been for the good, but political prudence demands that we keep power in the system dispersed at various levels. Completely eviscerating the authority of the legislature will do no good to the system. The courts can put a finger in the dyke to prevent occasional leaks, but they cannot be a substitute locus of governance. At least in this instance, the courts would have been wiser to give the legislature the presumption of the doubt.

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